Privacy Board Urges Shutdown of ‘Illegal’ NSA Data Dig

The United States National Security Agency should end its controversial bulk telephone metadata collection program, recommended the Privacy and Civil Liberties Oversight Board.

The board’s report, issued Thursday, says Section 215 of the U.S. Patriot Act, which provides the foundation for the NSA’s authority, “does not provide an adequate legal basis to support the program.”

The program raises concerns under the First and Fourth Amendments to the U.S. Constitution and is essentially useless, the board also found.

“I think that PCLOB’s reasoning about the unlawfulness of the program is perhaps the most important aspect of its report,” Gregory Nojeim, senior counsel at the Center for Democracy & Technology, told TechNewsWorld.

President Obama should halt the metadata collection program, pending judicial review and congressional action,” suggested David Moon, program director at

However, two of the five board members disagree with some of its findings and recommendations.

Highlights of the Report

The U.S. Foreign Intelligence Surveillance Court first granted the government’s application under Section 215 to collect bulk telephone metadata records in May 2006, the report notes.

However, Section 215 is designed to enable the FBI, as part of an investigation, to acquire relevant records that a business has in its possession. The NSA’s bulk telephone records program “bears almost no resemblance to that description,” the board found.

Existing Supreme Court doctrine has not made it clear whether the bulk collection program is constitutionally sound, because the program’s scope and duration far exceed anything previously laid before the courts, and the state of technology has advanced since the doctrine was developed, the PCLOB pointed out.

The board dismissed the contention by the NSA — and last week by President Obama in his speech on the surveillance issue — that the data collection helps allocate resources properly in time-sensitive situations.

“We question whether the American public should accept the government’s routine collection of all its telephone records because it helps in cases where there is no threat to the United States,” the board said.

The implications of the data collection program for privacy and civil liberties are serious, especially because the data is stored for five years and can be subjected to high-speed digital search and analysis, the board found. While the danger of abuse by the government seems remote, the report says, “given historical abuse of personal information by the government during the Twentieth Century, the risk is more than merely theoretical.”

Response to the Findings

“It seems clear that the president and members of Congress will now have to do better than simply stoking 9/11-style fears of terrorism in order to persuade the public of the value of potentially unconstitutional mass surveillance,” DemandProgress’ Moon told TechNewsWorld.

House Judiciary Committee will review the report’s conclusions, Chairman Bob Goodlatte vowed. The committee will hold a hearing soon on recommendations from the PCLOB, President Obama and the President’s Review Group on Intelligence and Communications Technologies.

A Nation Divided

“We think this could have a very significant impact on the debate about metadata collection,” Patrick Toomey, a staff attorney with the American Civil Liberties Union, told TechNewsWorld.

However, “I don’t have any hopes that the report will have any meaningful effect on the NSA’s current practices,” contended Yasha Heidari, managing partner at the Heidari Power Law Group.

A barrage of criticism over the years and multiple adverse reports have had “little substantive response so far,” he pointed out.

The board’s report is “adding more fuel to the fire,” Heidari told TechNewsWorld, “and the debate is simply becoming more polarizing.”

Still, voter mistrust of government is at record levels over the surveillance issue, DemandProgress’s Moon said. The group is organizing a mass protest against NSA surveillance to take place on Feb. 11.

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